Following up on last week's posts, Sutton v. DeRosia, 2012 WL 4863788 (E.D.Cal. 2012), provides a nice illustration of why the Best Evidence Rule should apply to writings that are no offered to prove the truth of the matter asserted.

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

As I noted last week, several courts have held that the Best Evidence Rule is inapplicable when a party seeks to introduce a writing to prove something other than the truth of the matter asserted in the writing. In other words, several courts have conflated the rule against hearsay and the Best Evidence Rule.

The opinion of the United States District Court for the Eastern District of California in DeRosia, however, reveals why such conflation is folly. In DeRosia, Elizabeth Sutton was previously employed by the City of Delano as an Administrative Secretary for its police department and supervised by the police chief, Mark DeRosia. Sutton thereafter brought an action against the City and Chief DeRosia for retaliation she allegedly experienced for taking medical leave and filing a complaint with California's Department of Fair Employment & Housing.

In response to the defendants' motion for summary judgment, she sought to present

Pamela Romero's...declaration. Ms. Romero's declaration provides that in early 2010, her supervisor received an email from Chief DeRosia, which Ms. Romero read, that instructed Ms. Romero's supervisor to advise Ms. Romero not to have contact with plaintiff....The email further provided that if Ms. Romero did have contact with plaintiff, Ms. Romero would receive a written reprimand.

The CIty objected that the declaration was inadmissible because DeRosia failed to produce the original e-mail or account for its nonproduction. The court sustantined the objection, finding that the "[p]laintiff has not submitted the email sent to Ms. Romero's supervisor and the declaration is used to 'prove the content of a writing.'"

This appears to be the correct result because Sutton was seeking to prove that DeRosia made the threat, which was the content of the e-mail. Importantly, Sutton was not seeking and/or did not need to prove the truth of the matter asserted in the e-mail, i.e., that Romero would in fact receive a written reprimand if she had contact with Sutton.